The Big Picture- Article 131 - Special Powers of Supreme Court

• 21 Jan 2020

Recently, the Kerala government filed a civil lawsuit in the Supreme Court (SC) challenging the Citizenship Amendment Act (CAA) 2019, under the provisions of Article 131 of the Indian Constitution. Kerala claims that the Act is violative of the Doctrine of Basic Structure- as it is against the principle of equality, freedom, and secularism which forms part of the basic structure of the Constitution.

• The CAA 2019 grants Indian citizenship to persecuted non-Muslim minorities viz. Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who migrated to India from Afghanistan, Pakistan and Bangladesh on or before December 31, 2014.

Constitutional Provisions

Article-131: Original Jurisdiction

• The SC (as a federal court of India) possesses Original jurisdiction to decide the disputes arising between different units of the Indian Federation like:
  
  • Centre and one or more states; or
  • Centre & any state(s) on one side and one or more states on the other; or
  • Two or more states.

Note: In the above-mentioned cases, the Supreme Court has exclusive original jurisdiction, which means that no other court in the country can decide such disputes and SC has the power to hear such disputes in the first instance & not by the way of appeal.

• However, a few points need to be noted:
  
  • The dispute must involve a question of law or fact on which the existence/extent of a legal right depends. Thus, the questions of political nature are excluded from it.
  • Any suit brought before the Supreme Court by a private citizen against the Centre or a state cannot be entertained under this article.
  • Also, the provisions mentioned in this Article are subject to other provisions of the Constitution, i.e., if a remedy to any issue is present under any other Article of the Constitution, then this Article will not be available. For example, in cases of water disputes between two or more states, the remedy to such conflicts is entertained under Article 262 of the Constitution and not under Article 131.

Part XI and the Seventh Schedule

Part XI (Articles 245-263) of the Indian Constitution consists of articles that describes the legislative, administrative, and financial relations between the Union and the States.

• Article 246: Defines the legislative subject matters on which the Parliament and the State Legislatures can make laws. These matters are enumerated in the 3 lists of Seventh Schedule. According to it,
  
  • Parliament has exclusive powers to make laws on the subjects mentioned in the Union List. Parliament is also empowered to make laws for territories which presently do not form part of any state.
  • State Legislature (in normal circumstances) has exclusive powers to make laws on subjects enumerated in the State List.

Note: Under 5 scenarios, the Parliament is empowered to make laws on State List subjects viz., if a resolution is passed to that effect by the Rajya Sabha (Article 249), during National emergency, President’s Rule, if requested by two or more States, under obligation to implement an International Treaty.

• • Both Parliament & State Legislature can make laws on items described in the Concurrent List. However, in case of any conflict, the Central law prevails.

• Seventh Schedule: The Constitution provides for a three-fold distribution of legislative subjects between the Union and the states, viz., List-I (the Union List), List-II (the State List) and List-III (the Concurrent List), described in this schedule:
  • Union List: This List contains matters of national importance and the matters which require uniformity of legislation nationwide. This list has at present 100 subjects (originally 97) like defence, naturalisation & citizenship (entry 17), banking, foreign affairs, atomic energy, communication, census, etc.
  • State List: This List contains matters of regional and local importance which require state-specific solution and the matters which permit diversity of interest. It presently contains 61 subjects (originally 66 subjects) like public order, police, public health and sanitation, agriculture, local government, gambling, etc.
  • Concurrent List: This List contains matters on which uniformity of legislation throughout the country is desirable but is not essential. This List at present has 52 subjects (originally 47 subjects) like criminal law and procedure, civil procedure, marriage and divorce, population control and family planning, electricity, economic and social planning, etc.

Articles 256 and 365

• Article 256 of the Constitution states that the executive power of every State must ensure compliance with the laws made by the Parliament.
  
  • Kerala has said in its suit that, under CAA it would be compelled to comply with its provisions because of Article 256. Kerala considers CAA to be arbitrary, unreasonable, irrational and violative of fundamental rights.
  • If it does not follow the same, the repercussions could be seen in the form of Article 365.
• Article 365: In case of failure to comply with, or to give effect to, directions given by the Union, the President is empowered to make a decision thinking that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution. Hence, the President’s rule could be enacted.

Issues

Question of legality- Can a State Challenge a Central Law under Article 131?

• In Kerala’s filed petition, the question of legality arises as Kerala claims that CAA is violative of Fundamental rights. Now the SC has to decide:
  
  • If a State can claim that its legal rights are violated (even if some fundamental rights of some individuals within the State gets violated), and
  • Also, what are those legal rights which have been violated?
• However, in the West Bengal government’s case in 2017, the SC proclaimed that the State government cannot ask for any remedy related to Fundamental rights. The case was filed under Article 32 of the Constitution challenging the validity of the ‘Aadhaar Act’. The Court also held that, “Fundamental rights are available to individuals: citizens or non-citizens against the State (under Article 32 or Article 226) and not to the State entities.”
• Similar Petitions:
  
  • Chhattisgarh government also recently filed a suit in SC (under Article 131) against the National Investigation Agency (NIA) Act, 2008 claiming that ‘Police’ & ‘Public Order’ are the state subjects and States have the ultimate authority to make laws related to it.
    
    • NIA Act, 2008 takes away the state’s power to investigate offences categorised as ‘scheduled offences’ under the Act, though they are within State’s jurisdiction.
  • The West Bengal government earlier filed a case with regard to ‘Rights in Mines in Coal-bearing areas’ against the Central law (Coal Bearing Areas (Acquisition and Development) Act, 1957) under Article 131.
    
    • The State claimed that the Act did not apply to lands vested in or owned by the State, and even if it applied to such lands, the Act was beyond the legislative competence of the Parliament.
    • In 1962, the SC entertained the West Bengal’s petition under Article 131 as the State had legal rights in this case, however, it also upheld the Central law.
• Conflicting Judgments: There have been two conflicting judgments given by the Supreme Court on whether a State can file an original suit under Article 131 to challenge the constitutionality of a central law:
  
  • In the State of Madhya Pradesh vs Union of India, 2011 case, the issue dealing with electricity was raised and the Court held that States cannot challenge a central law under Article 131.
  • In the State of Jharkhand Vs State of Bihar, 2015 case, the SC took the opposite stance and referred the question of law to a larger Bench for final determination.

Can Supreme Court test the validity of a law under Article 131?

• Legislative Competence: A law must be challenged in the Court if it is in excess of the legislative competence of the framing authority.
  
  • Competence can be checked by checking the subject matter of the law forms part of which of the three Lists and has the competent authority framed the law on that matter.
• Violation of Rights: The Court can check whether a particular law violates which kind of rights- whether Fundamental or Constitutional rights?
  
  • Kerala’s petition is about violation of Fundamental rights and not about the legislative competence of the Parliament. Had the law been filed by any individual for the violation of their Fundamental Rights, the SC would have looked into the legality of the issue.
• Violation of the Constitution: The Court can test a law if it is ultra-vires the Constitution. In this regard, there are following Doctrines which have been evolved by the SC over a period of time:
  
  • Doctrine of Basic Structure: The Doctrine of Basic Structure signifies the basic features of the Constitution, which cannot be changed/amended, as they form the foundation of the Constitution on which its core principles/existence stands.
  • Doctrine of Pith & Substance: Pith means ‘true nature’ or ‘essence of something’ and Substance means ‘the most important or essential part of something’. Doctrine of Pith and Substance says that where the question arises of determining whether a particular law relates to a particular subject (mentioned in one List or another), the Court looks for the substance (i.e., the essential feature) of the matter. Thus, if the substance falls within Union List, then the incidental encroachment by the Central law on the subject mentioned in the State List does not make it invalid.
  • Doctrine of Colorable Legislation: The literal meaning of Colorable Legislation is that under the ‘color’ or ‘appearance’ of the power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on. It comes into play when a Legislature does not possess the power to make laws upon a particular subject but it indirectly makes law on it.
    • For example, under the guise of exercising a legislative power, if an attempt is made to exercise judicial power, then this would imply a covert attempt to overcome one of the limitations imposed on the legislature by the Constitution.

Way Forward

• Politically motivated pleas must be abandoned and must not be entertained by the SC. Instead, determined efforts must be made to resolve them within the political arena.
• In case of NIA: NITI Aayog in its report (submitted in 2017) suggested for the creation of a list enumerating the federal crimes and this List crimes must only be investigated by the NIA or the Central Bureau of Investigation (CBI).
  
  • The Parliament must ensure the implementation of these recommendations as this will eliminate the confusion which Chhattisgarh faces regarding the cases to be dealt by the NIA and will bring in more clarity on the overlapping provisions.
• Representatives of states must speak up in the Parliament when the laws are being framed & passed rather than making hue and cry later.
• Federalism is a two-way street. Both the parties to it must respect the boundaries (or ‘Lakshman Rekha’) of one another that has been drawn by the Constitution.
  
  • The States must restrain themselves while defying the implementation of Central laws, if done it might lead to the breakdown of constitutional machinery.
  • Like, in case of Motor Vehicle Amendment Act, 2019, the subject matter and provisions of which falls under List-III of the Seventh Schedule, both Parliament and State Legislature can form a law. The States cannot outrightly reject the framed Central law by not implementing its provisions.
  • Hence, States are bound to implement the Central laws until and unless they are declared as void and unconstitutional by the Higher Courts of the country.